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Saturday, March 30, 2013

Federal Class Action Filed Under the Indian Child Welfare Act

Photo Credit: Rapid City Journal, Kristina Barker

After a 16-month investigation by American Civil Liberties Union, the Oglala and Rosebud Sioux tribes and three tribal members filed a federal class-action suit in South Dakota to compel timely legitimate hearings when Indian children in the county are removed from their homes by child protective services.. The defendants in the suit include the state’s attorney for Pennington County, SD; an official of the state’s Department of Social Services and the county’s presiding judge.

The ACLU investigation that found that hearings provided are merely a 'rubber stamp' and absolutely no protection for parents who might have been wrongly accused. Parents are not allowed to see any documents related to the charges against them, not allowed to cross-examine witnesses, not allowed to introduce their own evidence and not even allowed to speak on their own behalf. Rather, they are forced to sit quietly while the judge enters the unverified testimony of government agents into the record as fact. According to ACLU attorney Stephen Pevar, hearings can be as short as one minute and Pennington County judges routinely give the state custody of the children for 50-120 days; even going so far as to make dubious claims in their orders.

According to the complaint, a hearing for one of the plaintiff families lasted about 60 seconds and they were not permitted to see any of the state's evidence or affidavits. The hearing ended with the judge entering an order claiming, without hearing any evidence, that taking the children was “the least restrictive alternative available.”

This is an emotional issue for all involved. Family members attending a local press conference gave account of their experiences with one grandmother crying: “Give my grandson back. I want him back. Please, someone help me.”

According to Stephen Pevar:

This suit is about systemic change. It’s about procedural fairness, about guaranteeing rights set forth in the U.S. Constitution and the Indian Child Welfare Act. The Supreme Court has long held that when the government takes anything from you, even your driver’s license or your furniture, you get a full accounting. If it’s true in those cases, it’s certainly true when government takes your children.

About Geoffrey J. Miller

Geoffrey J. Miller graduated with high honors from the University of Connecticut School of Law, where he was an associate editor of the Connecticut Law Review. Geoffrey is a practicing attorney who focuses on insurance coverage, fraud and crime coverage, cyber risk, and special event insurance.

Geoffrey is also an OCR and Ultra Runner who's competed in several ultra-distance events and at the Obstacle Course Racing World Championships in 2017.

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